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McDougald v. Dillow

United States District Court, S.D. Ohio, Western Division

February 26, 2019

JERONE MCDOUGALD, Plaintiff,
v.
MICHAEL DILLOW, et. al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge

         Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility and frequent filer in this Court, [1] has filed a prisoner civil rights action under 42 U.S.C. § 1983. On September 21, 2018, the Court entered a final Order and Judgment granting defendants' motion for summary judgment. (Docs. 59, 60). Thereafter, on October 3, 2018, October 29, 2018, November 13, 2018, and November 21, 2018 plaintiff/appellant filed a notice of appeal, motion for leave to appeal in forma pauperis, amended motion for leave to appeal in forma pauperis, and another motion for leave to appeal in forma pauperis. (Docs. 61, 63, 65, 67). On November 21, 2018, the undersigned issued a Report and Recommendation that plaintiff/appellant's motion for leave to appeal in forma pauperis be denied on the ground that plaintiff/appellant is prohibited from obtaining pauper status on appeal pursuant to the “three strikes” provision set forth in 28 U.S.C. § 1915(g). (Doc. 68). In making this recommendation, the undersigned found that plaintiff/appellant failed to allege particular facts showing any immediate or impending serious physical injury in existence at the time he filed his notice of appeal, which would enable him to proceed on appeal in forma paupers despite his prior three strikes.

         Plaintiff/appellant subsequently filed a “motion for leave to amend appeal to add imminent danger of serious physical injury, ” in which he seeks to satisfy the exception to the three-strikes provision in § 1915(g) for prisoners who are under imminent danger of serious physical injury. (Doc. 69). Without factual elaboration, plaintiff/appellant claims he has “been the subject of death threats by defendants Bauer, Osborne, Rogers, [and] Dillow” and is “currently being denied medical attention by nurses Reiter, Hart, Rayburn.” (Doc. 69 at PageID 491). In his objections to the Report and Recommendation, plaintiff/appellant also states that he was “OC sprayed and denied medical on Oct. 15, 2018 and has been subject to numerous death threats.” (Doc. 70 at PageID 493).

         Defendants/appellees have filed a response in opposition to plaintiff/appellant's motion (Docs. 71, 72), to which plaintiff/appellant has replied. (Doc. 74).

         I. OPINION

         Plaintiff/appellant is prohibited from obtaining pauper status for the purpose of appealing the judgment in this civil action. See 28 U.S.C. § 1915(g). As the undersigned has previously noted:

Mr. McDougald is prohibited by § 1915(g) from proceeding in forma pauperis in this case because three prior complaints filed by him while he has been a prisoner were dismissed with prejudice for failure to state a claim upon which relief may be granted. See McDougald v. Sammons, No. 1:17-cv-91 (Barrett, J.; Bowman, M.J.) (S.D. Ohio Feb 10, 2017) (Doc. 7, 10, 11) (dismissal for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1)); McDougald v. Stone, No. 1:17-cv-72 (Dlott, J.; Bowman, M.J.) (S.D. Ohio Feb. 1, 2017) (Doc. 5, 17, 20, 26, 27) (dismissal for failure to state a claim upon which relief may be granted); McDougald v. Ahmad, No. 1:16-cv-500 (Dlott, J.; Bowman, M.J.) (S.D. Ohio Apr. 28, 2016) (Doc. 27, 34, 35) (dismissal for judgment on the pleadings for failure to state a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)). The previous three dismissals for failure to state a claim upon which relief may be granted prevent Mr. McDougald from obtaining pauper status in the instant action.

McDougald v. Salyers, No. 1:18-cv-523 (Dlott, J.; Bowman, M.J.) (S.D. Ohio Aug. 2, 2018) (Doc. 2).

         Accordingly, plaintiff/appellant may not appeal in forma pauperis unless he falls within the statutory exception set forth in 28 U.S.C. § 1915(g), which applies to prisoners who are “under imminent danger of serious physical injury.” “By using the term ‘imminent,' Congress indicated that it wanted to include a safety valve for the ‘three strikes' rule to prevent impending harms, not those harms that had already occurred.” Abdul-Akbar, 239 F.3d at 315. See also Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (finding that the prisoner appellant was not entitled to pauper status on appeal where he failed to establish that he faced imminent danger of serious physical injury at the time the appeal was filed).

         Plaintiff/appellant claims he is in imminent danger based on alleged death threats on the part of the defendants to this action and allegations of insufficient medical treatment. The undersigned notes that plaintiff/appellant currently has at least seven cases pending in which he claims that he is in imminent danger based on death threats by other defendants and/or generalized lack of medical care claims. See Nos. 16-317 (Doc. 120: “I am constantly being subject to death threats and being denied medical.”), 16-1099 (Doc. 69 at PageID 491) (“I have been the subject of death threats by defendants Bauer, Osborne, Rogers, Dillows”), 17-95 (Doc. 53 at PageID 305) (“plaintiff has been threatened with death by Lt. Kyer . . . along with being the subject of excessive force denial of medical treatment and being subject to cold air from the intentional opening of the windows outside my cell”), 17-464 (Doc. 41 at PageID 218) (“I have been threatened with death by Defendant Williams and her co-workers . . . and been subject to retaliation and excessive force and the denial of medical treatment.”), 18-498 (claiming to be “the subject of death threats daily with the most recent death threats occurring on January 3, 2018 by c/o Lafferty and c/o Late.”), 19-50 (Doc. 1 at PageID 9-10) (claiming imminent danger based on death threats from Brian Barney and based on the denial of medical treatment), and 19-107 (Doc. 1 at PageID 12) (claiming imminent danger based on the denial of medical treatment related to OC spray).[2]

         In one of plaintiff/appellant's cases, the Court recently denied plaintiff/appellant's motion to amend his complaint to include allegations of imminent danger and denied petitioner's motion for leave to proceed in forma pauperis. Specifically, plaintiff/appellant sought to amend the complaint to include allegations that he was denied mental health treatment and was sprayed “with a deadly amount of OC spray on Oct. 15, 2018, and denied medical treatment.” See McDougald v. Ms. Salyers, 1:18-cv-523 (S.D. Ohio Feb. 1, 2019) (Doc. 7). These are the same allegations plaintiff/appellant raises in his objections to the pending Report and Recommendation in this action.[3] (See Doc. 120). The Court denied plaintiff/appellant's motions, reasoning as follows:

With regard to Mr. McDougald's allegations, the Court concludes that the failure to provide medical treatment for the alleged October 15, 2018 “deadly amount of OC spray” did not exist at the time of McDougald's July 30, 2018 complaint, and is, therefore, not an appropriate amendment to the instant action. Accordingly, his request to amend his complaint to include this allegation is denied.
The Court has no doubt that Mr. McDougald struggles with mental health challenges and in obtaining the best possible treatment for those challenges. However, viewed in context with his Complaint in this case and with the allegations contained in many of his prior lawsuits in the Southern District of Ohio, the Court finds that the allegations are insufficient to allow a court to draw reasonable inferences that the danger presently ...

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